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Frequently Asked Questions

Klenk Law specializes in trusts, wills, estate planning, probate, and will challenges and will contests, with offices in Philadelphia, Bucks County, Allentown, New York and New Jersey.

LGBT FAQs

+ Do my Partner and I need a Will or Estate Plan?

While we recommend that all persons structure an Estate Plan to meet their individual needs, a number of factors exist that make estate planning for gay and lesbian couples especially important. The state in which you and your partner reside will largely affect how your assets will pass in default of any plan.

For instance, in New Jersey, same-sex couples to enter into civil unions, those partners that choose to do so are granted the same state-based rights that married heterosexual couples have. This creates an uncommon estate planning opportunity for LGBT couples, allowing same-sex partners to take advantage of tax and financial planning tactics. If you and your partner entered into a Civil Union and resided in Burlington County, for example, you would be able to structure your plan to take advantage of those opportunities that married couples have.

In Pennsylvania, same-sex couples are not granted the ability to enter into legally recognized unions or marriages. This presents a number of additional hurdles for LGBT partners, however, an effective Estate Plan can help you and your partner overcome these issues.

Our gay friendly attorneys have represented same-sex couples in both Pennsylvania and New Jersey. We understand the need for effective estate planning for gay and lesbian persons, whether it be to take advantage of New Jersey Civil Union benefits or to avoid unwanted consequences for same-sex partners in Pennsylvania.

+ If I have no Will at my death, will my property pass to my Partner?

The answer to this question depends largely upon two factors: 1) The state in which you reside and 2) How your property is titled.

In New Jersey, those same-sex couples who have entered into Civil Unions will inherit under the laws of intestacy (applying to persons dying without wills). In Pennsylvania, however, gay and lesbian partners will not inherit property from their partner if he or she dies without a will, unless the partner is a named beneficiary of the asset.

Some rules are the same, whether you live in Philadelphia, Bucks County, or Burlington County, property owned by same-sex couples as tenants-in-common does not pass at death to the partner, but property held jointly with a right of survivorship with your partner will pass automatically to him or her at death. Additionally, in New Jersey, Civil Union couples may take advantage of owning property as tenants by the entireties just as married couples may.

These factors alone, however, may not fully satisfy your wishes for property you want to pass to your partner. An effective estate plan for gay and lesbian persons will help you and you partner achieve your goals.

+ How can I ensure sure that my Partner can make healthcare and end of life decisions on my behalf?

Estate planning for same-sex couples should also include drafting the proper documents to ensure that you can select the person whom you want to make healthcare and end of life decisions on your behalf should be unable to do so. Depending on the default rules of your home-state, without these documents in place, your partner may not be authorized to make these decisions for you.

Whether you live in Montgomery County, Pennsylvania or Camden County, New Jersey, gay and lesbian couples should execute Powers of Attorney and Health Care Directives that give the power to make important decisions to the persons whom they wish to make them.

Our Estate Planning Attorneys can help you do so.

+ Who has the power to control my funeral arrangements?

In Pennsylvania, a deceased person’s surviving spouse, or if there is none, the deceased’s “next of kin” has the sole authority to determine the disposition of the remains of the person, including power over funeral arrangements.

Similarly, in New Jersey, a person’s surviving spouse or civil union partner have the authority to arrange for the disposition of remains, followed next by the deceased’s children, parents, brothers and sisters, and ultimately other next of kin should there be no more closely related persons.

While these statutes may have been designed to limit litigation between family members, they work to the disadvantage of a surviving partner. However, carefully drafted clauses in Wills or other writings allow same-sex partners to designate the person they want to control their funeral arrangements upon their death despite the default rules established by statute. Such a designation is vitally important for same-sex couples in Pennsylvania and for non civil union couples in New Jersey.

Our Estate Planning attorneys can help you to ensure that the person you want to control your funeral arrangements has the legal authority to do so.

+ Will my partner be able to visit me if I am in the hospital?

TWhile federal rules are changing to make it easier for LGBT partners to visit one another in the hospital, it remains vitally important that the proper documents be in place to establish visitation rights for the partner of another who is hospitalized. In Pennsylvania and New Jersey, it is possible to identify individuals, including your partner, who the hospital must give visitation access. Even for Civil Union partners in New Jersey, these documents add weight to the legitimacy of the relationship, and are legally enforceable should a hospital have discriminatory practices.

Our Estate Planning Attorneys can help you ensure that your loved ones have the right to visit you.

+ What about my qualified plans?

Federal law allows individuals other than spouses to be the beneficiary of your 401K and IRA plans in an inherited form, enabling these beneficiaries to delay the payment of income tax on these plans. This means that you can name your partner as beneficiaries of your qualified plans without having to worry about him or her having to liquidate the plan.

Naming your partner outright as the beneficiary, however, exposes the assets of the plan to your partner’s creditors, includes the asset in the partner’s estate, and gives up your control over who inherits the IRA after your Partner’s death. Our firm can help you create a vehicle for passing your IRAs and 401Ks to your loved ones while addressing these problems.

+ My partner and I have children, but only one of us has legal custody. How can we ensure that if the legal parent dies first, the other can still be involved our children’s lives?

n the end, all decisions surrounding custody are based on the best interests of the child, but you can provide for an alternate guardian in your Will and clearly state your reasons for believing your partner would be the appropriate guardian for your minor children. Though custody procedures will appear different between Burlington County, New Jersey and Montgomery County, Pennsylvania, they both will take your wishes into consideration as long as those wishes are clearly stated.

Furthermore, naming your partner the trustee of any trusts established for your children can help keep them involved in their lives, even if they are not named the legal guardian. Our attorneys can help you craft the necessary documents to help you ensure that surviving partners can stay involved in your children’s lives.

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Estate Matters
The Klenk Law Blog



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